18 Wis. 337 | Wis. | 1864
By the Court,
Before this cause was reached for argument on the calendar, a motion was made to dismiss the appeal, on two grounds: 1st, Because the order denying the
We are clearly of the opinion that this is an appealable order under our statute. An order to arrest and bail is what is denominated a “ provisional remedy,” and the appeal act, in prescribing what orders may be brought to this court by appeal, expressly names one which grants, refuses, continues or modifies a provisional remedy. Chap 164, Laws of 1860, section 10, subd. 3. An order denying a motion to vacate the order of arrest, in effect, of course, continues the original order. 8 How. Pr. R., 353.
As little ground is there for claiming that a party waives or loses his right to appeal from such an order, by complying with its conditions and giving bail. Even paying a judgment, or collecting the money due thereon by fi. fa., has been held to be no ground for setting aside or staying proceedings on writ of error. Clark v. Ostrander, 1 Cowen, 437; Dyett v. Pendleton, 8 id., 325; Clowes v. Dickinson, id., 328. Of course, where a party agrees not to prosecute his appeal, or waives his right by acquiescing in the order and accepting some benefit or advantage under it, then it would be contrary to good faith to permit him to go on and have it reviewed. No such thing exists here. The party had to comply with the order or go to jail. And there is no reason for saying that because he did comply with it and give bail, he tacitly or expressly acquiesced in its correctness, and waived his right to have it reviewed.
This brings us to a consideration of the appeal on the merits — whether the affidavit upon which the original order was granted shows, in the language of the statute, “ that a suffic
We have great doubt about the second branch of the affidavit stating any cause of action whatever. The respondent was not arrested upon that requisition, nor does he show that he was in any manner injured or damnified by it. But besides all that, he does not show that the indictment has been disposed of, and that the prosecution is at an end. This objection, of course, is common to both causes of action ; but we have relied upon the statute of limitations in respect to the first, because it furnishes a complete answer to any possible view which could be taken of the case. And the numerous authorities cited on the brief of the counsel for the appellant show that the law is equally well settled, that in actions of this kind it must appear that the proceedings are legally at an end. Nor do we think the rule is different where it appears that the indictment was found in a sister state. However it might be held if it appeared that the indictment was found in a foreign country, no reason is perceived why, under the provisions of the federal constitution and laws of congress for the rendition of fugitives from justice in one state found in another, and the authentication of records and judicial proceedings, it should
We think the order of arrest should have been vacated.
The order of the county court, refusing to grant the motion to vacate the order of arrest, is reversed, and the cause remanded for further proceedings in conformity to this opinion.